FOIA Project Annotation: Judge Gladys Kessler has ruled that the FBI properly withheld the majority of responsive records concerning its use of drones in response to a request from CREW. While the agency relied on obvious exemptions like Exemption 1 (national security) and Exemption 3 (other statutes), it was equally successful in withholding large number of records under a combination of Exemption 4 (confidential business information) and Exemption 7(E) (investigative methods and techniques), perhaps the first time that combination has come up in litigation as the basis for withholding what was essentially manufacturers' information about the products. CREW's request for records about the FBI's use of drones included a request for expedited processing, which the agency denied. However, by the time CREW got into court, Kessler ordered the agency to process records at the rate of 1,500 pages per month. The agency made six interim releases and one supplemental release. In all, the agency found 6,720 pages, released 1,970 in full or in part, and withheld the rest under Exemption 1, Exemption 3, Exemption 4, Exemption 5 (privileges), Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E). CREW chose not to challenge the agency's search, but did contest the exemptions as well as the agency's obligation to conduct a segregability analysis and disclose non-exempt information. The agency claimed records were protected by Exemption 1 because disclosure would reveal intelligence sources and methods. CREW argued that "the domestic use of drones by the FBI does not constitute an 'intelligence activity' or 'intelligence sources or methods' within the meaning of" the Executive Order on Classification and that testimony of former FBI Director Robert Mueller contradicted the agency's claims. Kessler noted, however, that Mueller had testified that the agency used drones in eight criminal cases and two national security cases. She pointed out that "'National security cases' is a broad category and by no means excludes foreign counterintelligence activities." She added that "in addition, the FBI's statutory duties include protecting the United States from terrorism and threats to national security, as well as furthering the foreign intelligence objectives of the United States. It logically follows that the FBI's use of drones relates to issues of national security and the intelligence activities of the United States." CREW also questioned the agency's foreign relations claim. Kessler observed that "although CREW characterizes its FOIA request as pertaining exclusively to the FBI's domestic drone program, any such limitation is absent from its FOIA Request itself." She observed that "in short, the FBI's comments do not rule out the possibility of drone use pertaining to foreign activities or foreign relations." Because the FBI's Exemption 3 claim was based on the sources and methods provision in the National Security Act, Kessler quickly found that the same types of records that fell under Exemption 1 were also protected under Exemption 3. Turning to Exemption 4, Kessler rejected the FBI's argument that disclosure would impair the agency's ability to get similar information in the future. She pointed out that "DOJ has not sufficiently explained how disclosure will make future contract solicitation submissions less reliable." She also rejected the agency's claim that disclosure could undercut the vendor's position by allowing potential competitors to obtain information. Here, she noted that "DOJ fails to fully explain the relevance of the fact that the vendor exclusively sells this type of equipment to law enforcement entities." She was far more satisfied with an in camera affidavit provided by the vendor. Here, she found that "public release of this information would cause serious competitive harm to the vendor. The vendor must diligently protect this information at every juncture. The vendor requires non-disclosure agreements from third-party commercial intermediaries, confidentiality agreements from employees, and does not share this information with competitors or the public. It would put the vendor at a distinct disadvantage in bid solicitations if its pricing information were made public." CREW argued that DOJ had placed too much reliance on the vendor's affidavit and that operating manuals for drones were publicly available. Kessler rejected both arguments. She noted that "CREW does not challenge the substance [of the vendor's claims]â€"that competitive harm will result from disclosureâ€"of the vendor and DOJ's assertions." As to the manuals, she pointed out that "CREW does not assert that the withheld materials are the same as those in the public domain, but does point to different drone manuals and training documents which are in the public domain. However, the existence of those materials and training documents do not indicate that the vendor's sensitive information is already public, nor does it necessarily diminish the vendor's concerns of competitive harm." Kessler then found that much of the information about the drones was protected by Exemption 7(E). To rebut the agency's claims that information about the use of drones by government agencies was not already publicly known, CREW pointed to various information from the Internet, as well as articles discussing the operational capabilities of drones. Kessler, however, pointed out that "this argument assumes that all drones are alike. While drones may generally face similar challenges across the board, it does not logically follow that all of the capabilities and limitations are similar, or that to know one is to know them all. DOJ explicitly states that the information withheld contains 'non-public investigative techniques and procedures.' The public information cited by CREW does not raise doubts about the veracity of DOJ's claim." CREW also questioned whether vendor and supplier identities could be protected under Exemption 7(E). Kessler agreed with the agency's argument that "disclosure of the vendor would, due to the vendor's niche market, reveal the equipment and services provides to the FBI." As to training materials, Kessler noted that "the training and equipment information, if disclosed, would reveal law enforcement techniques and procedures, which could reasonably be expected to risk circumvention of the law."
Issues: Exemption 4 - Competitive harm, Exemption 4 - Impairment of agency, Exemption 7(E) - Unknown to public

Consent MOTION to Stay Deadlines in Light of Lapse of Appropriations by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kneedler, Jennie) (Entered: 10/01/2013)

2013-10-01

MINUTE ORDER granting 7 Defendant's Consent Motion to Stay the Initial Scheduling Conference (ISC) and the Deadline to Submit a Joint Meet and Confer Statement in light of lapse of appropriations; counsel for Defendant will notify the Court as soon as Congress has appropriated funds for the Department of Justice; at that point, the ISC and the deadline to submit the Joint Meet and Confer Statement will be extended commensurate with the duration of the lapse in appropriations to the Department of Justice. Signed by Judge Gladys Kessler on 10/1/13. (CL, ) (Entered: 10/01/2013)

2013-10-22

8

NOTICE to Court of Restoration of Appropriations by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kneedler, Jennie) (Entered: 10/22/2013)

2013-10-23

MINUTE ORDER: An Initial Scheduling Conference is set in this case for October 31, 2013, at 10:00 a.m.; no later than 72 hours prior to the Initial Scheduling Conference, counsel shall file a Joint Meet and Confer Statement. Signed by Judge Gladys Kessler on 10/23/13. (CL, ) (Entered: 10/23/2013)

ORDER that Defendant shall continue to process Plaintiff's Freedom of Information Act request at issue (see Order for details); the parties shall submit a Joint Status Report on or before January 31, 2014, setting forth any remaining issues and, if appropriate, a proposed briefing schedule; the Initial Scheduling Conference set for October 31, 2013, is hereby CANCELLED. Signed by Judge Gladys Kessler on 10/30/13. (CL, ) (Entered: 10/30/2013)

ORDER that the FBI is to process, at a minimum, 1,500 pages of responsive records per month; the Parties shall file a Joint Status Report no later than March 15, 2014; that Joint Status Report shall indicate how many pages of responsive records have been located, how many pages remain to be examined before estimating how many pages remain to be identified as responsive, and by what date the reviewe for responsive records will be completed. Signed by Judge Gladys Kessler on 2/4/14. (CL, ) (Entered: 02/04/2014)

MINUTE ORDER: Due to a calendar adjustment, the time for the Status Conference on June 25, 2014, is hereby changed from 10:00 to 10:15 a.m. Signed by Judge Gladys Kessler on 6/19/14. (CL, ) (Entered: 06/19/2014)

Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 6/25/2014. Order to be issued. (Court Reporter: Barbara DeVico) (tth) (Entered: 06/25/2014)

2014-06-30

15

ORDER setting forth a briefing schedule (see Order for details and dates). Signed by Judge Gladys Kessler on 6/30/14. (CL, ) (Entered: 06/30/2014)

2014-06-30

Set/Reset Deadlines: Cross Motions due by 1/5/2015. Response to Cross Motions due by 2/5/2015. Reply to Cross Motions due by 3/5/2015. Summary Judgment motions due by 10/15/2014. Response to Motion for Summary Judgment due by 1/5/2015. Reply to Motion for Summary Judgment due by 2/5/2015. (CL, ) (Entered: 06/30/2014)

Consent MOTION for Extension of Time to File Response/Reply as to 19 Cross MOTION for Summary Judgment , 17 MOTION for Summary Judgment (Motion to Alter Briefing Schedule) by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kneedler, Jennie) (Entered: 02/02/2015)

2015-02-03

21

ORDER granting 20 Defendant's Consent Motion for Extension of Time; Defendant shall have up to and including February 13, 2015, in which to file its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion; Plaintiff shall have up to and including March 23, 2015, in which to file its Reply in Support of its Cross Motion for Summary Judgment. Signed by Judge Gladys Kessler on 2/3/15. (CL, ) (Entered: 02/03/2015)

2015-02-03

Set/Reset Deadlines: Response to Cross Motions due by 2/13/2015. Reply to Cross Motions due by 3/23/2015. Reply to Motion for Summary Judgment due by 2/13/2015. (CL, ) (Entered: 02/03/2015)

NOTICE OF SUBSTITUTION OF COUNSEL by Adam J. Rappaport on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Substituting for attorney Anne L. Weismann (Rappaport, Adam) (Entered: 05/01/2015)

2016-02-04

29

ORDER that Defendant shall file a redacted version of the vendor declaration previously submitted to the Court ex parte as Exhibit A to the Second Hardy Declaration, not later than February 15, 2016; Defendant shall limit its redactions to information previously withheld pursuant to the FOIA exemptions asserted in this matter. Signed by Judge Gladys Kessler on 2/4/16. (CL) (Entered: 02/04/2016)